On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Fritz, P.J.A.D.
There is no essential dispute with respect to the facts of the matter presented. As is appropriate in such case, the trial judge entered summary judgment. It is from this judgment in favor of defendant that plaintiffs appeal.
Amelia Bixenman, the injured plaintiff (hereafter simply plaintiff) -- her husband sues per quod -- is a member of the Greek Orthodox Church of Ocean County. In May 1975, and for several months prior thereto, that church, having no sanctuary of its own, was permitted to use premises owned by defendant and "loaned to them until such time as they have built and can move into their own Church." In exchange for this privilege the Greek Orthodox Church paid a nominal rental, euphemistically called a donation. Evidence that this amount did not cover the cost to defendant is uncontroverted.
Sometime during that May, Amelia had attended church services after which she had gone to the parish house. While leaving the parish house she "was caused to fall" down five steps from a platform at the door of the parish house "by a stone that was beneath my foot." In this suit she seeks damages for resulting injuries.
At the outset we observe that the serious question as to whether the accident as described demonstrated a prima facie case of negligence was not argued below or here. In fact, plaintiffs in their brief before us claim that their motion for summary judgment was "in essence, to strike the defendant respondent's defense of charitable immunity," and that "defendant respondent was cross-moving to establish charitable
immunity in the defendant respondent." While neither party has favored us with the motion papers, the motion below was argued by both parties solely on the ground of charitable immunity vel non under N.J.S.A. 2A:53A-7 and we confine our review to this aspect.
Plaintiffs argue first that the leasing of the church property or the giving of it to another for its use is not within the ambit of the "performance of the charitable objectives for which [the lending or leasing church] was organized" and therefore plaintiff could not have been a "beneficiary * * * of the works" of that church. We reject this argument out of hand. It seems perfectly apparent to us that the facilitating of the worship of the Deity, albeit by others than their own parishioners, even those of a different Christian denomination or, for that matter, a different faith, is among the foremost of the religious, charitable and educational works for which a church exists and that such effort comes well within the statutory intendment. No less confining a definition was proposed by the recognition of the "propagation of religion" as an appropriate criterion of the church as a "charitable institution" in Bianchi v. South Park Presbyterian Church , 123 N.J.L. 325, 330 (E. & A. 1939).*fn1 That same long-respected authority notes further,
Such activities are plainly classable as a secondary church function in aid of its primary purpose. They serve as well to exemplify
religious doctrine. And, wholly apart from their religious significance, they are essentially charitable in nature as designed to advance the common interest in basal particulars. The vitalization of the spiritual concept of the brotherhood of man -- the bond that "makes all men one" -- fundamental in the social compact as expressed in our American democracy, is of paramount public concern. * * *. [123 N.J.L. at 332-333; emphasis supplied]
While Bianchi dealt with the use of a church house, appurtenant to the church edifice, for the meeting of a scout troop, and its language is geared to that social purpose as an extension of the primary religious purpose, it is evident that the Bianchi court refused to limit the immunity of the church to parochial activities. The trial judge in the matter before us was ...